Eakin v. DOD, No. 16-00972, 2017 WL 3301733 (W.D. Tex. Aug. 2, 2017) (Lamberth, J.)

Eakin v. DOD, No. 16-00972, 2017 WL 3301733 (W.D. Tex. Aug. 2, 2017) (Lamberth, J.)

Re:  Requests for certain digital records concerning World War II era Individual Deceased Personnel Files

Disposition:  Denying defendant's cross-motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; granting defendant's motion in alternative for Open America stay

• Litigation Considerations, Exhaustion of Administrative Remedies:  The court holds that "[s]ince the agency here, DoD, has failed to comply with applicable time limit provisions, [plaintiff] is deemed to have exhausted his administrative remedies."  The court relates that "DoD failed to respond within the 20-day statutory deadline[]" and "[i]t is further undisputed that [plaintiff] filed an appeal pursuant to DoD's instructions and DoD failed to respond to the appeal."
   
• Procedural Requirements, Searching for Responsive Records:  "[T]he Court finds that [plaintiff's] request is sufficiently particular for the government to ascertain and locate the requested documents, and, though broad, the request is not unreasonably burdensome to the DoD."  The court explains that, "[w]hile plaintiff's FOIA request is broad, the broad nature of the request is warranted given the necessarily broad nature of information that the plaintiff is seeking."  Additionally, the court finds that "[i]t appears the most burdensome work is removing recently-created, nonresponsive materials from the files in accordance with FOIA exemptions, rather than ascertaining or locating the responsive documents themselves."  "That DoD has already identified the cache of data in which the universe of responsive documents is located, segregated it, and begun cataloging documents for release, indicates that the plaintiff's FOIA request is sufficiently particular to enable the DoD to determine precisely what records are being requested."  "While the Court understands the need for the government to review the documents before sending 4.2 terabytes of personnel files to a requester, the fact that the DoD utterly failed to even make an attempt to communicate these realities to [plaintiff] is disappointing and frustrating."  "The Court will not fault the plaintiff here for failing to limit or modify his request when the government could not even be bothered to satisfy its relatively simple obligations under § 552(a)(6)(B)(ii)."
  
  However, the court finds that "[i]t would not be in the interest of justice, nor would it help the plaintiff's desire to expediently receive these documents, for the Court to order the Government to conduct the search again."  "Therefore, plaintiff's Motion for Summary Judgment will be denied insofar as it asks the Court to compel the Government to execute another search."
   

• Litigation Considerations "Open America" Stays of Proceedings:  The court holds that "Plaintiff's request for this order to compel production of the documents is premature."  "DoD has not yet completed its review of the responsive documents, nor has it articulated any exemptions which would excuse nondisclosure here."  "[T]he Court finds that the four conditions necessary to grant an Open America Stay are satisfied."  First, the court finds that, "[g]iven the sheer volume of plaintiff's request, and the large number of other requests the office must process, . . . the first condition necessary to qualify for an Open America Stay is satisfied."  Second, the court finds that "[i]t is clear, that the DoD's resources are inadequate to process the request within the time limits set forth in statute."  "Therefore, the Court finds that the second condition necessary to grant an Open America Stay is satisfied."  Third, "based on the affidavit testimony provided regarding the FOIA Action Officers working on this request, the Court finds that DoD is exercising due diligence in responding to the request."  "Therefore, the Court finds that the third condition necessary to grant an Open America Stay is satisfied."  Fourth, the court finds that "defendant has shown that they are making reasonable progress in reviewing these documents."  "Therefore, the Court finds that the fourth condition necessary to grant an Open America Stay is satisfied."  However, the court does find that "DoD will be required to provide a semi-annual production to [plaintiff], as outlined in their Motion for an Open America Stay."  "Such semi-annual production will be accompanied with its own respective Vaughn index."